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Report No. 172

2.4. Views of the "Sakshi" on the relevant provisions of the Code of Criminal Procedure and the Indian Evidence Act.-

At the end of the discussion on the first day, it was indicated to the persons mentioned in para above that if they wished to suggest any changes of a procedural nature, whether in the Criminal Procedure Code or in the Evidence Act, they could send the same by the next date, which was specified as 17th September 1999. Though the "precise issues" did not speak of any changes in the procedural laws (and was confined to amendments to Indian Penal Code only), we were of the opinion that unless certain changes are effected simultaneously in the relevant provisions of the CrPC and Evidence Act, the purpose underlying the changes in the substantive law IPC - may not be fully served.

It is for this reason that we suggested to Sakshi to come forward with their suggestions, if any, for amendment of procedural laws to achieve the purpose underlying changes in substantive laws. Accordingly, they came forward with as many as 14 suggestions proposing amendments not only in the Criminal Procedure Code and Evidence Act but also in the Indian Penal Code (Annexure-D). The procedural amendments suggested by them are to the following effect:

(1) The 84th Report of the Law Commission had suggested that where the statement of a girl-victim below twelve years of age is recorded, it should be done by a woman police officer or by a woman belonging to an organisation interested in the cause of women or children. The said recommendation should be accepted with certain changes set out in their note.

(2) The present proviso to sub-section (1) of section 160 of the Code of Criminal Procedure should be substituted by the following proviso: "Provided that no male person under the age of sixteen years or a woman shall be required to attend at any place other than his or her home or place of his or her choice."

(3) A new sub-section, namely, sub-section (6) should be inserted in section 160 CrPC to the effect that the statement of a male person under the age of sixteen years or a female, during the course of investigation, should be recorded only in the presence of a relative, a friend or a social worker of the person's choice.

(4) A new section, namely, section 164A should be inserted in the Code of Criminal Procedure stating that as soon as a case of sexual assault is reported to a Police person, he shall have the person (allegedly assaulted sexually) examined medically by a registered medical practitioner and that such medical practitioner shall after due examination, prepare a report setting out the various specified particulars. This proposal is a slight modification of the recommendation contained in the 84th Report of the Law Commission.

(5) Sub-sections (1A), (1B), (1C) and (1D) should be inserted in section 53 of the Criminal Procedure Code as recommended by the 84th Report of the Law Commission, with necessary adaptations.

(6) While granting bail to a person accused of sexual assault, one of the conditions which should be imposed by the court shall be that such person shall not be in the proximity of the person assaulted.

(7) In the case of sexual assault, there shall be no interference with or disturbance of the natural habitat of the person sexually assaulted by or through the criminal justice process.

(8) The investigation and trial of sexual offences should be time-bound and should be concluded within six months.

(9) The expression `social worker' shall be defined to mean a woman interested in or working for the cause of women and/or children and who is familiar with issues of violence against women and children.

(10) (a) A new section 114B should be introduced in the Evidence Act stating that where in a prosecution for aggravated sexual assault under sections 376A to 376D of the IPC, the question is whether the person so assaulted consented to it and where such person states before the court that he/she did not so consent, the court shall presume it to be so.

(b) Clause (4) in section 155 to the Evidence Act (which permits the person accused of rape or attempt to ravish to prove that the prosecutrix was of generally immoral character) should be deleted.

(c) In section 146 of the Evidence Act, another clause, namely, clause (4) should be added stating expressly that in a prosecution for sexual assault, it shall not be permissible to adduce evidence or to put questions in cross-examination of the person assaulted with respect to his/her previous sexual history, character or conduct whether to establish consent or otherwise.

(d) The absence of a medical report in the case of a sexual assault shall not be a factor against the complainant/person assaulted.

(11) There should be a provision either in the CrPC or in the Evidence Act to the effect that a minor who has been assaulted sexually, should not be required to give his/her evidence in the presence of the accused as it will certainly traumatise the minor. Steps should also be taken to provide an appropriate and safe environment in which the child can recover.

(12) The testimony of a child who is subjected to sexual assault should be recorded at the earliest opportunity by a judge/magistrate in the presence of a friend, relative or social worker whom the minor trusts. For a proper implementation of the above suggestion, videotape/circuit television should be provided. Further, where the child is to be cross-examined, the questions shall be handed over to the judge who shall in turn put those questions to the minor. While recording the evidence of the minor, appropriate breaks should also be given to make the minor feel comfortable.

(13) All cases of sexual assault should be tried by special courts which shall be manned by judges, prosecutors and counsellors, `specially trained/sensitised to issues of sexual assault'.

(14) A new offence should be created by appropriately amending section 166 IPC making it an offence for a public servant to disobey the direction of law prohibiting the summoning of a minor/woman at any place other than her place of choice and also a public servant who disobeys any direction of law with respect to the manner in which the investigation concerning a minor shall be conducted.

2.4.1. Discussion on the suggestions of "Sakshi".-

Each of the above suggestions were discussed in the Commission in the presence of the three persons representing organi- sations mentioned in para 2.2.1 above,in the light of the 84th Report of the Law Commission as well as the 154th Report of the Law Commission. While we agree with some of the aforesaid suggestions (as would be evident from the recommendations set out in the succeding chapters), we find ourselves unable to agree with all of them.

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